Cook Biotech

28/06/2010

The Court of Appeal has dismissed an appeal against the decision of Kitchin J at first instance, finding the European Patent (UK) 1 255 510 (“the Patent”) invalid.

The Court of Appeal held that the first instance judge had been correct to hold the Patent invalid for obviousness:

i) the argument that the Patent was directed to an interventional cardiologist, and so should be read with the limited knowledge, functions and expectations of such a person, was fundamentally flawed. The Patent and the Andersen prior art patent were notionally addressed at the relevant time not just to an interventional cardiologist but to a team which included or would have consulted a cardiac surgeon and someone familiar with the design of implantable surgical heart valves.They would have pooled their joint knowledge and experience when interpreting the Patent and Andersen;

ii) it is artificial, and counter-intuitive, to seek to make a clear division between the stent and the valve within it on the basis of functionality;

iii) Andersen reinforces the concept of a single stent, without meaningful differentiation according to the different functions it was performing;

iv) the appellant was wrong on the evidence to argue that part of the device had a function for which the interventional cardiologist was not responsible;

v) the minimum 1mm requirement in claims 15 and 22 was arbitrary, and merely there as a reflection of the obvious general need to secure and strengthen the edges of the valve and to prevent tearing.